Dramani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 2444

Dramani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2444 (23 July 2020)

Division:GENERAL DIVISION

File Number:          2019/7109

Re:Christine Dramani  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans-Bonner

Date:23 July 2020

Place:Perth

The Reviewable Decision, being the decision dated 8 October 2019 to refuse the Applicant’s application for Australian citizenship by conferral, is affirmed.

.............................[sgd]..........................................

Senior Member Dr M Evans-Bonner

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship – whether Tribunal satisfied of Applicant’s identity and good character – identification obtained through unofficial channels – inconsistencies in Applicant’s representations in documentation submitted to the Department – reviewable decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) – ss 21(1), 21(2), 21(2)(h), 24, 24(1), 24(3), 52(1)(b)

CASES

Beyan and Minister for Immigration and Border Protection [2015] AATA 256

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574

Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310

Fang and Minister for Immigration and Border Protection [2018] AATA 3686

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082

Zheng and Minister for Immigration and Citizenship [2011] AATA 304

SECONDARY MATERIALS

Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016 – Chapters 11, 13

National Identity Proofing Guidelines, Attorney-General’s Department, 2016 – Parts 2.1, 2.2

Revised Citizenship Procedural Instructions, Department of Home Affairs, 1 January 2019 – CPI16

Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)

REASONS FOR DECISION

Senior Member Dr M Evans-Bonner

23 July 2020

THE APPLICATION

1. The Applicant seeks review of a decision of a delegate of the Respondent dated

   
   

   8 October 2019 (T1/710; T2/11-18) to refuse to grant the Applicant Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act). This is the Reviewable Decision that is currently before the Tribunal.  

2. The basis for the refusal was that the delegate was not satisfied that the Applicant was of good character, as required by s 21(2)(h) of the Act. The delegate was also not satisfied of the Applicant’s identity, as required by s 24(3) of the Act (T2/11).

   BACKGROUND

3. The Applicant was born in Sudan, and first arrived in Australia from Uganda on
   15 August 2009 under a provisional partner visa (T24/289) granted on 16 July 2009
   (Exhibit R2, para [4]).

4. In the Applicant’s provisional partner visa application form dated 22 January 2009, she stated that her mother was deceased and that she had two sisters, SG and RK (T8/120).  

5. The Applicant also submitted a “personal particulars for character assessment” form dated 28 January 2009, where she listed her mother, father and a brother as being deceased. The Applicant listed her sisters, SG and RK in this form (T9/139-140). She submitted documentation including a Republic of Uganda Refugee Identity Card dated
   29 December 2008, a statutory declaration dated 13 January 2009 which was made in Uganda, and a Certificate of Good Conduct from Interpol Uganda (T10/156-159).

6. On 14 December 2011, the Applicant was granted a permanent partner visa (T24/288).  

7. However, in an application form dated 30 April 2015, the Applicant’s mother applied for a refugee visa. There were five dependents listed: SG; a sister, IK; a brother, EM; a sister, FJ; and another “cousin sister”, FA (T21/256-257). This application was made by the Applicant as the proposer (T21/261).  

8. On 9 February 2017, the refugee visa application was refused. The decision-maker was not satisfied that the relevant statutory criteria for the grant of the refugee visa were met (T23/267-270). 

9. The Applicant lodged an application for Australian citizenship by conferral with the Department of Immigration and Border Protection (the Department) on 13 July 2017 (T24/271-299). In this application form the Applicant stated that her mother and father were deceased, and the section regarding other immediate family members (expressed to include brothers and sisters) was not completed (T24/279-280).

10. In support of her application for Australian citizenship by conferral the Applicant submitted her Ugandan marriage certificate dated 6 December 2008 (T24/291-2). She also submitted Australian identity documentation including a:

    (a)“document for travel to Australia” issued by the Australian High Commission in Nairobi (T24/289);

    (b)copy of her Western Australia driver’s licence issued on 26 July 2011 (T24/290);

    (c)police certificate issued by the Australian Federal Police on 29 July 2011 (T24/293);

    (d)change of name certificate issued by the Western Australia Registrar of Births, Deaths and Marriages on 28 December 2012 (T24/294);

    (e)residential rate notice from her local shire council in the name of the Applicant and her husband issued on 28 July 2016 (T24/295); and

    (f)Western Australian National Police Certificate valid as at 8 May 2017 (T24/297).  

11. In a letter dated 28 September 2018, the Department requested further identity documents from the Applicant to process her application (T26/304-310).

12. The Applicant provided photographs (T27/311-312), as well as another residential

    rate notice from her local shire council showing the name of the Applicant issued on

    
    

    24 July 2017 (T27/317). She also provided additional documents from Uganda relevant to her identity including a:

    (a)student identity card from her secondary school issued on 3 March 2005 and renewed on 6 March 2006 (T27/313);  

    (b)Uganda Red Cross blood transfusion service card showing a blood transfusion on 13 June 2005 (T27/314-5);

    (c)Republic of Uganda driving permit issued in March 2009 (T27/316);

    (d)

    South Sudan Administration Birth Certificate for the Applicant dated

    
    

    15 October 2017 (T27/319); and

    (e)Republic of South Sudan Ministry of Health National Medical Commission Age Assessment Certificate dated 19 July 2018 (T27/320).

13. The Department sought to verify the authenticity of the Applicant’s driver’s licence, marriage certificate, school records, birth certificate and age assessment certificate (T32/336). In an email from the Australian High Commission in Nairobi, visa integrity unit, the integrity officer explained that (T32/336):

    Individuals born in South Sudan prior to independence are required to obtain an age assessment certificate from the Medical Commission at the government hospital responsible for the area where the birth occurred. Age assessment certificates are issued on the basis of an examination of the applicant undertaken by a government doctor to assess the likely age of the applicant.   

    Despite the requirement to present in person to the Medical Commission, these documents are regularly obtained by family members in South Sudan on behalf of applicants and are issued on the basis of information provided at time of application with not [sic] supporting documents required.  

    Age assessment certificates are considered to be extremely unreliable and are [sic] cannot be verified.

    The applicant has provided an age assessment certificate claimed to have been issued in South Sudan on 19 July 2018, however, entered Australia on 15 August 2009 and has not departed since her original arrival suggesting that a contact in South Sudan obtained a document on her behalf without the required examination by government doctor.

    I further note that the date of birth recorded on the document has been altered. Overall, I place little weight on this document as evidence of age or identity.

    Based on the above information the referral is verified as [having] SERIOUS CONCERNS…

14. With respect to the Applicant’s birth certificate, the integrity officer continued to explain that (T32/336-337):

    An examination of the document has been undertaken and the following concerns identified:

    ·     The birth certificate indicates a field for amount to be paid. It is noted that this is shown as ‘Shs Paid’. Shs is an abbreviation for shillings, however, I note that South Sudanese Pounds are the currency used in South Sudan and the abbreviation for this is SS£

    ·     Births in South Sudan rarely occur in health clinics as such I find it highly unlikely that the applicant was born at the health centre in 1986 as claimed

    ·     If the birth did occur at the health clinic as claimed, it is extremely unlikely that birth records from 1986 would still be in existence following extended periods of civil war, as such I question on what basis this document was issued

    ·     The wet seal of the issuing office appears to have been printed onto the document as opposed to being stamped

    Based on the above information the referral is verified as [having] SERIOUS CONCERNS…

15. On 2 September 2019, the Department wrote to the Applicant to invite her to comment on this adverse information regarding her age assessment certificate and her birth certificate (T34/ 343-349). In a letter to the Department dated 6 October 2019, the Applicant’s solicitors (at that time) made submissions in response (T35/351-364). These submissions included the following:

    [T]hat no issues were raised in respect of the other documents provided to the Department by the Applicant on 9 October 2018, being a school record from [the Applicant’s] Secondary School, a Ugandan driving permit, a refugee ration card and a Ugandan blood donation record. (T35/360, para [13].)

    Given that the Applicant fled South Sudan as a refugee, she has very limited access to documents relating to her time there. It was on this basis that she sought assistance from her uncle, who used his best endeavours to try and access these documents through the appropriate channels. (T35/361, para [15].)

    [T]he Applicant has very limited access to documents relating to her birth in South Sudan due to her refugee status and the limited infrastructure in South Sudan for birth registration… (T35/361, para [17].)

    The Applicant wishes to stress that she was unaware that there may be some difficulties with the legitimacy of these documents, and it was on this basis that she forwarded these documents to the Department. Further, the Applicant advises that had she known that these documents may not be authentic then she would not have provided these to the Department. (T35/362, para [20].)

    South Sudan… does not have a formal procedure for the application of documents relating to birth and age. Due to this lack of appropriate infrastructure, it is submitted that there was no way for the Applicant to scrutinise the legitimacy of these documents by verifying with an appropriate government body. Furthermore, given that the Applicant left South Sudan as a refugee, it is submitted that it is not possible for the Applicant to attend South Sudan in person to obtain such documents. (T35/362, para [23].)

    In respect of the Applicant’s overall character, it is noted that she has resided in Australia since 15 August 2009. The applicant has no prior criminal record in Australia and has fully complied with the laws of the Commonwealth. It is submitted that this is indicative of her respect for, and willingness to comply with the laws of Australia and her overall good character. (T35/363, para [24].)

16. However, on 8 October 2019, a delegate of the Respondent made the Reviewable Decision which was to refuse the grant of Australian citizenship (T1-T2/7-18). 

17. On 4 November 2019, the Applicant applied to the Tribunal seeking review of the Reviewable Decision of 8 October 2019 (T1/1-6).

    MATERIAL BEFORE THE TRIBUNAL

18. The application was heard on 3 June 2020. The parties appeared by telephone, in accordance with the Tribunal’s policy not to conduct in-person hearings as a temporary protective measure due to the COVID-19 pandemic. The Tribunal thanks the parties for their cooperation in appearing by telephone.

19. The Applicant was self-represented and stated that she did not require the assistance of an interpreter. The Respondent was represented by Mr Papalia.

20. The Applicant gave evidence at the hearing and was cross-examined by Mr Papalia.

21. The Tribunal admitted into evidence the following materials at the hearing:

    (a)unsigned and undated statement from the Applicant emailed to the Tribunal on
    21 February 2020 (Exhibit A1);

    (b)

    the s 37 (T-documents) numbered T1 to T36 and comprising 365 pages

    
    

    (Exhibit R1); and

    (c)the Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated
    17 April 2020 (Exhibit R2).

    ISSUES

22. The issues that the Tribunal must determine in this review are whether the Tribunal is satisfied:

    (a)that the Applicant is of good character for the purpose of s 21(2)(h) of the Act; and/or

    (b)of the Applicant’s identity for the purpose of s 24(3) of the Act.

23. As the Respondent correctly observes in paragraph [25] of Exhibit R2, “[i]f the Tribunal is not positively satisfied as to either of those matters, it must affirm the decision under review”.

    LEGISLATIVE AND POLICY FRAMEWORK

    Legislative provisions

24. Section 21(1) of the Act provides that:

    A person may make an application to the Minister to become an Australian citizen.

25. Further, s 24 of the Act provides:

    (1)If a person makes an application under section 21, the Minister must,
    by writing, approve or refuse to approve the person becoming an Australian citizen.

    …

    (1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

26. Section 24(3) of the Act concerns identity and provides:

    (3)The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

27. Section 21(2) of the Act sets out general eligibility requirements for citizenship. It provides:

    (2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

    (a)is aged 18 or over at the time the person made the application; and

    (b)is a permanent resident:

    (i)    at the time the person made the application; and

    (ii)   at the time of the Minister’s decision on the application; and

    (c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

    (d)understands the nature of an application under subsection (1); and

    (e)possesses a basic knowledge of the English language; and

    (f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

    (g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

    (h)is of good character at the time of the Minister’s decision on the application.

    (Emphasis added.)

28. The Reviewable Decision in this application is reviewable by the Tribunal. This is because

    
    

    s 52(1)(b) of the Act provides that the Tribunal has jurisdiction to review decisions made under s 24:

    (1)An application may be made to the Administrative Appeals Tribunal for review of the following decisions:

    …

    (b)a decision under section 24 to refuse to approve a person becoming an Australian citizen; …

    Character

29. The Citizenship Act does not include a definition of “good character”.  The meaning of “good character” was recently considered by the Federal Court in BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39 (BOY19). O’Bryan J stated at 51-52 [51]:

    The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2)(h) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed and precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions (cf O’Sullivan v Farrer (1989) 168 CLR 210 at 216; 89 ALR 71 at 75 per Mason CJ, Brennan, Dawson and Gaudron JJ; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 348; 94 ALR 11 at 32; 21 ALD 1 at 18 per Mason CJ and CLR 380–2; ALR 56–8; ALD 40–2 per Toohey and Gaudron JJ. Third, and as a corollary of the second point, the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.

30. When considering the meaning of “good character”, in BOY19, O’Bryan J referred to the preamble of the Act, at 52 [52]-[53]:

    [52]The subject matter, scope and purpose of the Act is informed by its Preamble which states:

    The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.

    The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:

    (a)     by pledging loyalty to Australia and its people; and

    (b)     by sharing their democratic beliefs; and

    (c)     by respecting their rights and liberties; and

    (d)     by upholding and obeying the laws of Australia.

    [53]The ideals of diversity, democracy and liberty, reflected in the Preamble to the Act, indicate that the expression “good character” is not to be informed or assessed by individual religious, political or social beliefs, but by moral qualities that are regarded as a necessary concomitant of Australian citizenship. Matters that bear upon a person’s good character for the purposes of the Act are matters relevant to the obligations of citizenship as expressly or impliedly reflected in the Act, including its Preamble.

31. Chapter 11 of the Citizenship Policy, Department of Immigration and Border Protection,
    1 June 2016 (Citizenship Policy) provides some guidance as to what constitutes good character. It states (page 145):

    ‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship…

32. The Citizenship Policy refers to several decisions that define “good character”.

    
    

    These include the following definition from Irving v Minister for Immigration,
    Local Government and Ethnic Affairs (1996) 68 FCR 422, 431–432 (Irving) (page 145):

    Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

1. After citing the above passage from Irving, the Citizenship Policy (page 145–146) explains:

   In this context, ‘moral’ does not have any religious connotations. The phrase ‘enduring moral qualities’ encompasses the following concepts:

   ·     characteristics which have been demonstrated over a very long period of time

   ·     distinguishing right from wrong

   ·     behaving in an ethical manner, conforming to the rules and values of Australian society.

   The good character requirement looks at the essence of the applicant.
   Their behaviour is a manifestation of their essential characteristics.

   This broad definition means that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.

2. The Citizenship Policy also (page 146) refers to the decision of Deputy President Breen in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 (Fenn), at [8]:

   The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home… The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.

3. Relevantly, in Irving, at 424, Davies J stated that: “[t]he question whether a person is or is not of ‘good character’ is primarily an issue of fact.” Davies J further stated that the assessment of character requires the decision-maker to exercise a value judgment, at

   
   

   427–8:

   I should reiterate that the issue for decision was an issue of fact, the determination of which Parliament reposed in the Minister and his delegates. It is not the task of this Court to come to its own view of that fact. The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgment. There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision.

4. Further, the Citizenship Policy (page 146) cites the decision of Deputy President Forgie in

   
   Zheng and Minister for Immigration and Citizenship [2011] AATA 304

   at [120]:

   120. In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do. Keeping out of trouble is one way in which a person may show that he or she is of good character. Doing good works and acts of kindness may be another. How a person behaves when trouble finds them or they are confronted by situations that make them uncomfortable may be yet another.
   The ways are not finite.

5. The Citizenship Policy also provides a non-exhaustive list of “[c]haracteristics of good character” (page 147). It provides that:

   …an applicant of good character would:

   ·     respect and abide by the law in Australia and other countries

   …

   ·     be truthful and not practice deception or fraud in their dealings with the Australian government, or other governments and organisations, for example:

   o   providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications

   …

6. The section of the Citizenship Policy titled, “Weighing up the character decision” (pages 149–150) states:

   Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of
   ‘good character’ requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.

   In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:

   ·     would a person of good character have behaved the way the applicant did

   ·     what is there to demonstrate that the applicant has upheld and obeyed the law

   ·     has the applicant behaved in accordance with Australia’s community standards

   ·     does the applicant share Australia’s democratic beliefs and respect its rights and liberties.

   In Prasad and Minister for Immigration and Ethnic Affairs ([1994] AATA 326 at [7]), the AAT said:

   ‘a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however,

   
   

   that, despite the many good qualities possessed by a person,

   
   

   those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.’

   A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application.

7. In Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082 at [82]–[83], Senior Member Puplick emphasised the importance of applicants being truthful:

   82.Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship.

   83.Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.

   84.Equally, it is a hallmark of citizenship to take personal responsibility for one’s own actions and not cast them off onto the shoulders of others. Even persons who are not able to manage well in the English language can do this without resort to placing themselves in the hands of deceitful third parties.

   (Footnotes omitted.)

8. Further, in Fang and Minister for Immigration and Border Protection [2018] AATA 3686 at [97], Senior Member Puplick made the following comment about the need for an applicant to be truthful about their identity:

   those, who are not citizens and who are seeking to do so, must be absolutely truthful as to who they are and absolutely truthful about their identity. Truthfulness in the completion of government documents, such as passenger arrival cards, applications for visas or citizenship, licences or identity documents is an absolute requirement – applicable indeed, equally to citizens and non-citizens alike

   Identity

9. Although s 24(3) of the Act provides that the Minister must be satisfied of the identity of the person before approving the person for citizenship, identity is not defined in the Act.

10. The Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) provides that:

    the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied as to the identity of the person. There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.

11. Chapter 13 – “Identity” of the Citizenship Policy provides that the concept of identity is as described in the Attorney-General’s Department’s National Identity Proofing Guidelines (2016) (Guidelines).

12. Paragraph 2.1 of the Guidelines provides:

    2.1.1A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.

    2.1.2A person’s identity in Australia (for the purposes of these Guidelines) is generally considered to be established at birth with the creation of a RBDM [Registry of Birth Deaths and Marriages] birth record that details unique information about an individual–such as name, date and place of birth. For people not born in Australia, their identity in Australia is generally established from personal details recorded on DIBP [the then, Department] Australian immigration documents or records.

13. Paragraph 2.2 of the Guidelines sets out five identity proofing objectives:

    2.2.1The veracity of claims about a person’s identity is established through evidence provided to meet some or all of the following five identity proofing objectives (depending on confidence in the claimed identity required):

    1.Confirm uniqueness of the identity in the intended context to ensure that individuals can be distinguished from one another and that the right service is delivered to the right individual…

    2.Confirm the claimed identity is legitimate to ensure the identity has not been fraudulently created (i.e. the identity is that of a real person) through evidence of commencement of identity in Australia…

    3.Confirm the operation of the identity in the community over time to provide additional confidence that an identity is legitimate in that it is being used in the community (including online where appropriate)…

    4.Confirm the linkage between the identity and the person claiming the identity to provide confidence that the identity confirmed through objectives 2 and 3 is not only legitimate, but that the person claiming the identity is its legitimate holder…

    5.Confirm the identity is not known to be used fraudulently to provide additional confidence that a fraudulent (either fictitious or stolen) identity is not being used…

14. The Revised Citizenship Procedural Instructions (RCPI) state the following in CPI16

    
    

    (at [4.12]) – “Assessing Identity under the Citizenship Act”:

    It is not sufficient to be satisfied of a person’s identity at one point in time, as a person’s identity is not a point in time concept; it must be verified incrementally throughout a person’s life and considered historically.

15. The RCPI further provides (at [4.4] of CPI16):

    When assessing a person’s identity, the Department relies on a combination of three elements, referred to as the three pillars of identity. Each pillar is made up of individual characteristics

    …

Three pillars of identity

Individual characteristics

Biometrics

Personal identifiers, which include fingerprints, facial images, or a person’s signature. Biometrics can be used for comparison, with, for example, facial images held by the Department or other domestic or international agencies.

Documents

Only reliable identity documents can satisfy this pillar. A reliable identity document is issued with robust identity proofing processes along with issuance protocols and security features.

Documents contain bio data, or personal information, such as name, date of birth, nationality, and/or citizenship, and may also contain biometric information.

Life story

A person’s life story is a narrative of the events that happened to them from birth to present. Officers should consider the events that happened to the person, and the information and detail correlating to the events. A person’s life story may include descriptions of family composition, education, employment, countries of residence, countries visited, social footprint, and online presence.

1. Previous Tribunal decisions have also considered the meaning of “identity”. In Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310 Deputy President Nicholson stated, at [117]:

   Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity. I accept the submission for the applicant that the case merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected. The question here is whether the identity can be established to the satisfaction of the Tribunal.

2. In Beyan and Minister for Immigration and Border Protection [2015] AATA 256 Senior Member Walsh stated at [38]:

   a Certificate of Australian Citizenship is a legal document of considerable significance and the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where, as is the case here, the identity of the Applicant is far from clear.

   CONSIDERATION

   Is the Tribunal satisfied that the Applicant is of good character?

3. As noted above, in her partner visa application form dated 22 January 2009, the Applicant listed her mother as being deceased (see para [4] above). The Tribunal accepts that at this time the Applicant genuinely believed that her mother was deceased, and that it was not until approximately 2014 that the Applicant learnt that her mother was still alive (transcript, page 10). Then in 2015, the Applicant’s mother applied for a refugee visa, with the Applicant as the proposer. This application was rejected on 9 February 2017 (see paras [7]-[8] above). However, when the Applicant applied for citizenship by conferral on 13 July 2017, she stated that her mother was deceased (see para [9] above).

4. When asked about these discrepancies at the Tribunal hearing, the Applicant was reluctant to answer (see transcript/17-19). However, during cross-examination the Applicant admitted that she knew her mother was alive, but nevertheless stated that her mother was deceased on her citizenship application form. This was because she thought she would have a better chance of success if she stated her mother was deceased, as she had done on her successful partner visa application. This is evident from the following exchange (transcript/18-19):

   SENIOR MEMBER:    So, I think you’re saying that you knew that she was alive, but you put ‘deceased’ on the form anyway.  Is that correct?

   APPLICANT:              Yes, I put that she’s dead.

   SENIOR MEMBER:    All right?

   APPLICANT:               Because the previous form was so she’s dead, so I have to follow the same thing, I think, because the form was being rejected. 

   MR PAPALIA:            But the previous application, that is, the application where you proposed that your mother and siblings and your cousin come to Australia wasn’t rejected because your mum was deceased, was it?

   APPLICANT:              Yes, it was rejected.

   MR PAPALIA:            Well, it was rejected because they didn’t meet the criteria for the grant of the visa, not because she is deceased.  So, you said that you had to put the same as the first form, that is, your partner application form. Is that because you thought you would have better success on the citizenship application, if you copied what was in your first form?

   SENIOR MEMBER:    Ms Dramani?

   APPLICANT:              Yes.

5. It is important for Applicants to be truthful in their dealings with the Department and not to provide false information (see Citizenship Policy, above at paragraph [37]). A person should show good moral qualities throughout the citizenship process (Citizenship Policy, above at paras [31] and [33]). This includes being honest when dealing with the Department and providing correct and accurate information to them. The Applicant included a statement that she knew to be untrue in her citizenship application because she believed that she would have a better chance of success if she stated that her mother was deceased. Unfortunately for the Applicant, this casts doubt on her character. Thus, the Tribunal cannot be satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act.

6. This finding does not, however, mean that the Applicant cannot redeem herself. She can make a future application for citizenship in the future but will need to provide an honest and fulsome explanation for making this misrepresentation to the Department.

   Is the Tribunal satisfied of the Applicant’s identity?

7. As noted above, the Australian High Commission in Nairobi verified the Applicant’s age assessment certificate and her birth certificate as having “serious concerns” regarding their authenticity (see paras [13]-[14] above). These concerns included that age assessment certificates are obtained after an examination of the applicant by a government doctor. However, the Applicant entered Australia in 2009, and the age assessment certificate was issued in 2018, so she was not present in South Sudan at the time it was issued. The concerns about the Applicant’s birth certificate included the incorrect currency being referred to. Further, the Applicant did not obtain these documents by official means; rather she admitted that she asked her uncle to obtain these documents for her so she could apply for citizenship (transcript/9-10; 23-24). Based on this evidence, the Tribunal cannot be satisfied that the Applicant’s age assessment certificate and birth certificate are genuine, which makes it difficult for the Tribunal to be satisfied about the Applicant’s identity. When asked if she knew these documents were not genuine, or whether she had a suspicion they were not genuine, the Applicant stated (transcript/25):

   Well, yes, I don’t know.  I don’t know anything, I’m telling you the truth, I don’t know.  They just send it to me and then straight away for me, I forward to migration.  I didn’t know if it’s genuine or fake or what, I didn’t know. I’m telling the truth.

8. The Tribunal accepts the Applicant’s evidence that she did not know or have a suspicion that these documents were not genuine (transcript/24-25). Even though the Applicant was sometimes reluctant to answer questions, as discussed above, when she did, the Tribunal found the Applicant to be honest, as demonstrated by her admission that she knew the statement that her mother was deceased in her citizenship application to be untrue. 

9. The Tribunal notes, however, that the Applicant has submitted other documents in support of confirming her identity. These include her Republic of Uganda driving permit. No concerns were raised by the Respondent about this document. She also submitted her student identity card. Some concerns were raised by the Respondent about that document because it is in the Applicant’s married name, which was not her name when she was at school. The Tribunal does, however, accept the Applicant’s explanation that she had left the identification with her uncle and that she asked him to go to the school to correct her name because she was concerned that her name needed to be consistent (transcript/22). The Applicant also submitted a copy of her blood transfusion card which adds to the overall evidence about her identity but is not a primary document.  

10. Thus, if the Applicant can make enquiries through more official channels to obtain identity documents, particularly primary identity documents such as her birth certificate, together with her Ugandan driver’s licence and the other documentation she provided, she may be able to provide enough information to the Department to enable them to be satisfied of her identity in a future citizenship application. The Tribunal acknowledges the concerns articulated by the Applicant’s previous solicitors in paragraph [15] above, which may make it difficult for her to obtain primary identity documents. The Applicant should, however, attempt to obtain these documents through official channels, rather than relying on a family member, and should document her attempts to do so.

1. Additionally, the Tribunal notes that the Applicant has been consistent with her name and date of birth. However, as outlined above, she has not consistently identified her relatives in the documentation she has submitted to the Department. At the hearing the Applicant explained that she omitted two of her siblings in her partner visa application because they were only half siblings from her father’s previous relationship (transcript/13). She explained that she included more of her relatives in the subsequent refugee visa application after receiving information about them from her mother in 2015 (transcript/15), and that she did not include any family members in her citizenship application because all her family members in Australia were already citizens (transcript/19-20). The Applicant subsequently agreed that she did not want to include any relatives in her citizenship application because she did not want to deal with any prior inconsistencies in the documentation she previously submitted to the Department (transcript/20). The Applicant, however, appeared to be stressed during the Tribunal hearing, and at times was upset when giving evidence. The Tribunal is of the view that despite the latter admission, there may be some basis to the Applicant’s explanations about inconsistently listing her family members in the documentation she submitted to the Department. In a future citizenship application, the Applicant may be able to more comprehensively explain the basis for these inconsistencies.

2. Given the issues with the Applicant’s birth certificate and age assessment, there is very little information to confirm the Applicant’s identity up until the issue of her school certificate when she was 18 years old. Additionally, the inconsistencies in the listing by the Applicant of her relatives in the documentation submitted to the Department, need to be more comprehensively explained for the Applicant’s life history to be verified. Whilst these defects can be remedied by the Applicant in a future citizenship application, at the time of this decision the Tribunal cannot be satisfied of the Applicant’s identity for the purpose of s 24(3) of the Act.

   CONCLUSION

3. For the reasons outlined above, the Tribunal is not satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act. Also, the Tribunal is not satisfied of the Applicant’s identity for the purpose of s 24(3) of the Act.

4. The Tribunal is of the view, however, that the Applicant may be able to remedy the defects that the Tribunal has identified in a future citizenship application. Specifically, the Applicant could obtain (or make attempts to obtain) primary identity documents by official means which confirm her identity from birth. She could also provide more comprehensive information about her life history in a sworn statutory declaration (including details of her family members, and an explanation for inconsistently listing her family members in the documentation submitted to the Department). She will also need to provide an honest and fulsome explanation for making the misrepresentation regarding her mother being deceased in her citizenship application.

   DECISION

5. Consequently, the correct or preferable decision is to affirm the Reviewable Decision, being the decision dated 8 October 2019 to refuse the Applicant’s application for Australian citizenship by conferral.

I certify that the preceding 62 (sixty–two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

........[sgd]...............................................................

Associate

Dated: 23 July 2020

Date of hearing:	3 June 2020
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Mr J Papalia
Solicitor for the Respondent:	The Australian Government Solicitor